Lechnyr v. Germansky

113 N.Y.S. 969

Opinion

BISCHOEE, J.

The proof before ■ the court supported a prima facie case of the plaintiff’s performance of an agreement to procure a loan upon the defendant’s property for a definite compensation. While the paper signed by the defendant referred to the “making” of the loan by the plaintiff, it also called for the acceptance of the loan the following day, a condition which certainly suggested that some person other than the plaintiff, to whom the paper was at once delivered by the defendant, was to accept the application, and that this was the actual agreement which the ambiguously expressed writing was aimed to embody appeared directly from the testimony. It was also shown, prima facie, that the lender produced was ready and willing to make the loan, but that the transaction failed because the property was incumbered beyond the condition of the application. Whether the agreement of employment was as testified to by the plaintiff, or was in fact a cover for usury, necessarily became a question for the jury to determine, and it was error for the justice to resolve that question against the' plaintiff upon a motion for nonsuit.

The judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.